United States District Court, E.D. Michigan, Southern Division
January 22, 2015
UNITED STATES OF AMERICA, Plaintiff,
LUCINDA DARRAH, Defendant
For United States of America, Plaintiff: Margaret M. Smith, LEAD ATTORNEY, United States Attorney's Office, Detroit, MI.
For Lucinda Darrah, Defendant: Bradley R. Hall, LEAD ATTORNEY, Michigan Appellate Assigned Counsel System, Lansing, MI; Rafael C. Villarruel, Federal Defender Office, Detroit, MI.
Honorable David M. Lawson, United States District Judge.
Lucinda Darrah was charged with " depositing literature, " and disorderly conduct in violation of postal regulations after she refused to stop handing out campaign literature on the sidewalk at the George W. Young Post Office in Detroit, Michigan. She was acquitted of the former charge, but convicted of disorderly conduct because she interfered with a postal police officer taking his equipment (including his shotgun) into the building. She appealed her conviction, arguing that her conduct was protected by the First Amendment and citing procedural errors. After reviewing the record and hearing oral argument, the Court concludes that Darrah's conduct was not protected by the First Amendment, the proceedings before the magistrate judge were procedurally sound, and the conviction was supported by the evidence. Therefore, the conviction will be affirmed.
Around 10:30 p.m. on July 11, 2013, Lucinda Darrah parked her car in a handicapped parking space at the George W. Young Post Office located at 1401 West Fort Street in Detroit, Michigan. She then began to hand out campaign fliers within one foot to ten feet in front of the employee entrance to the post office. Postal officers Paul White and Christopher Taliferro observed Darrah passing out flyers several feet away from the employee entrance. The officers walked over to Ms. Darrah and informed her that she was not permitted to hand out the campaign literature on postal property, and they told her to move her car from the handicapped spot because the vehicle lacked the required placards.
Darrah did not immediately comply; Office Taliferro called Sergeant Rhonda Fudge for further assistance. Officer White testified that Darrah was a " little combative" and " erratic" because she " wanted to hand out her literature." In fact, White testified that Darrah was " standing all over the place . . . moving . . . chasing people down handing literature to them even while [the officers] were talking to her . . . chasing different people handing literature out." Officers had to coax Ms. Darrah for five to ten minutes before she agreed to comply with their orders to move her car.
About ten minutes later, Darrah returned to the post office and approached Officer Taliferro, who was bringing his equipment from the patrol car inside the building. Darrah appears to have questioned him about the postal rules and regulations. Officer White testified that Darrah " slowed down" Taliferro and " block[ed] his . . . direct access to the building."
Around this time, Darrah resumed handing out literature to postal employees and gave a leaflet to Sergeant Fudge. Fudge read Darrah the Poster 7 Postal Rules and Regulations, which describes the basic requirements governing conduct on postal property. Darrah responded by " question[ing] the law itself" because " she didn't believe that's the way it should be."
The situation escalated. Sergeant Fudge informed Darrah: " You cannot -- I told you you cannot [hand] your literature out. You cannot impede the doors." Sergeant Fudge then tried to tell Darrah where she could distribute her campaign literature. Darrah listened at first, but soon became agitated. Before Sergeant Fudge could point to the area where Darrah could pass out her campaign literature, Darrah " threw up her hands in kind of an irate matter." Sergeant Fudge testified that Darrah made contact with her fingertips, although Officer White testified that he did not see that. Following the confrontation, the officers escorted Darrah into the post office, and Sergeant Fudge issued her two tickets: one for disorderly conduct and the other for depositing literature on postal grounds. The disorderly conduct ticket stated:
I was first informed by Officers Taliaferro [sic] and White that Ms. Darrah refused to move her vehicle from the GWY Postal Customer Lot (1401 W. Fort St 48252) and she was passing out literature @ the employee's entrance of the GWY. I tried to explain to Ms. Darrah, she became disorderly and was issued 2 federal violations.
Violation, dkt. #13-2.
On September 24, 2013, then-Magistrate Judge Laurie Michelson presided over a bench trial. During the trial, Sergeant Fudge clarified that she issued the disorderly conduct ticket because " Ms. Darrah impeded the officer that was trying to bring in his shotgun into the building" and because " she became . . . somewhat disorderly with me because I was trying to help Ms. Darrah and . . . she refused to follow our instruction and she became somewhat agitated."
Judge Michelson found Darrah not guilty of depositing literature on post office property, and guilty of disorderly conduct. Judge Michelson explained that the guilty verdict was based " on [Darrah's] physical conduct with Sergeant Fudge . . . her becoming agitated when the officers tried to explain the regulations to her and also her impeding Officer Taliferro from entering the post office." The court ordered Darrah to pay a $50 fine and $25 processing fee. Darrah appealed her conviction, which is now before the Court.
Darrah was convicted by the magistrate judge of violating a federal regulation, 39 C.F.R. § 232.1(e), that governed the operations of postal facilities. Such a violation is a misdemeanor punishable by a fine and imprisonment for up to 30 days. 18 U.S.C. § 3061(c)(4)(B). In challenging her conviction, Darrah raises three issues on appeal: (1) whether the magistrate judge committed clear error by finding that the defendant violated the disorderly conduct regulation by impeding Officer Taliferro's access to the post office; (2) whether the disorderly conduct conviction on the grounds stated represented a constructive amendment or prejudicial variance; and (3) whether the defendant's actions are protected by the First Amendment.
When reviewing a conviction by the court sitting without a jury, the district court reviews the magistrate judge's " findings of fact for clear error and its conclusion of law de novo." United States v. Caseer, 399 F.3d 828, 840 (6th Cir. 2005) (citing United States v. Al-Zubaidy, 283 F.3d 804, 809 (6th Cir. 2002)). Clear error has occurred when the reviewing court " is left with the definite and firm conviction that a mistake has been committed." Ibid. (citations omitted). " The 'clearly erroneous' test does not derive solely from the trial judge's superior opportunity to assess the credibility of witnesses; it also reflects and preserves the proper relationship between trial courts and courts of appeal." United States v. Jabara, 644 F.2d 574, 577 (6th Cir. 1981) (citing Lundgren v. Freeman, 307 F.2d 104 (9th Cir. 1962)). The Court may not substitute its own judgment for that of the trial court. In re Scrap Metal Antitrust Litigation, 527 F.3d 517, 528 (6th Cir. 2008); see also Matter of New Ctr. Hosp., 187 B.R. 560, 565 (E.D. Mich. 1995) (" The 'clearly erroneous' standard has been interpreted to mean that the reviewing court has a definite and firm conviction that a mistake has been made, not only that a different result could have been reached.") (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 395-96, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).
The regulation Darrah was convicted of violating reads:
Disturbances. Disorderly conduct, or conduct which creates loud and unusual noise, or which impedes ingress to or egress from post offices, or otherwise obstructs the usual use of entrances, foyers, corridors, offices, elevators, stairways, and parking lots, or which otherwise tends to impede or disturb the public employees in the performance of their duties, or which otherwise impedes or disturbs the general public in transacting business or obtaining the services provided on property, is prohibited.
39 C.F.R. § 232.1(e). Judge Michelson found that the government proved beyond a reasonable doubt that Darrah violated the regulation by " engag[ing] in conduct which impedes ingress to or egress from a post office." Judge Michelson reached her decision based on the following factual findings: (1) Darrah made physical contact with Sergeant Fudge; (2) she became agitated when the officers tried to explain the regulations to her; and (3) she impeded Officer Taliferro from entering the post office. Darrah argues that her conduct did not violate any provision of the regulation.
Darrah makes a couple of good points. Section 232.1(e) prohibits individuals from obstructing post office entrances, disturbing postal employees in the performance of their duties, or impeding the public in the transaction of postal business. United States v. Kokinda, 497 U.S. 720, 758, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (Brennan, J., dissenting); see also United States v. Waites, 198 F.3d 1123, 1128 (9th Cir. 2000) (" Under 39 C.F.R. § 232.1(e), disorderly conduct requires some conduct which disturbs or impedes the general public or the postal employees in transacting business."). Darrah's accidental brush against Sergeant Fudge's fingertips did not amount to any of that. Sergeant Fudge testified that she approached Darrah after observing her hand out campaign literature to a postal employee. After asking Darrah to stop distributing the literature, Darrah inquired where she could hand out the literature. Sergeant Fudge testified that as she raised her hand to point to the area, Darrah raised both of her hands, contacting Fudge's fingertips in the process. There is no evidence that Darrah attempted to hit, grab, block, hold, or prevent Sergeant Fudge from entering or exiting the post office. Instead, the testimony indicates that Sergeant Fudge " raised my hand and she raised both of her hands, " presumably in a gesture of frustration. No violation of the regulation can be found in that conduct.
Nor can a violation be found in Darrah's " agitation." " 'The general rule is that merely remonstrating with an officer [on] behalf of another, or criticizing or questioning an officer while he is performing his duty, when done in an orderly manner, does not amount to obstructing or delaying an officer in the performance of his duties.'" Wilson v. Kittoe, 229 F.Supp.2d 520, 528-29 (W.D. Va. 2002) (quoting Brooks v. NC Department of Correction, 984 F.Supp. 940, 955 (E.D. N.C. 1997)); see also Johnson v. Bax, 63 F.3d 154, 159 (2d Cir. 1995) (" [E]xpressive activity protected by the First Amendment may not be punished as disorderly conduct."). Darrah's " agitation" emerged after Sergeant Fudge tried to explain the government's rules of conduct on postal property. The record discloses that Darrah listened at first and then " became a little agitated" because she wanted to know where postal property ended and the sidewalk began. Similarly, Officer White testified that Darrah was calm in the beginning. She " questioned the . . . law itself and was debating whether that was . . . actually the way it was" until she eventually " threw up her hands in kind of an irate matter." The testimony reveals that Darrah criticized and questioned the officers and became frustrated by their answers. However, Darrah did not obstruct or impede White or Fudge from entering the post office or delay them in performing their duties. In fact, the officers actually were performing their duties when they engaged with Darrah. Her questions, without more, " do not amount to obstructing or delaying an officer in the performance of his duties." Wilson, 229 F.Supp.2d at 528-29.
The encounter with Officer Taliferro is another matter. Sergeant Fudge testified that she issued the ticket to Darrah because she " impeded [Officer Taliferro, who] was trying to bring in his shotgun into the building." Similarly, Officer White testified that Darrah stopped Officer Taliferro as he was returning his " 12-gauge shotgun" and " duty gear" to the post office and questioned him about the " situation." Officer White indicated that Ms. Darrah " slowed [Officer Taliferro] down" and " block[ed] his direct access to the building." Judge Michelson concluded that the officers " testified consistently that [the] defendant impeded Officer Taliferro from entering the post office." The defendant did not dispute this testimony at trial, but argued that the government failed to take a statement from Officer Taliferro and therefore the evidence was insufficient to establish Darrah's guilt beyond a reasonable doubt.
On appeal, the defendant cites United States v. Waites, 198 F.3d 1123 (9th Cir. 2000), a case in which the court held that a homeless defendant found sleeping on several occasions late at night inside a twenty-four hour post office did not violate section 232.1(e) because " [t]here is no evidence that the times and places where [the defendant] was sleeping and was directed by the Marshal Service to leave the premises impeded postal employees or the general public in transacting business." Id. at 1128. Darrah reasons that because she conducted her campaign activities late in the evening, when the post office building was closed to the public, she cannot have violated the regulation. Waites does not help Darrah, however, because the evidence found by the lower court established that the defendant actually interfered with Officer Taliferro's efforts to return his duty weapon to the post office building. The regulation specifically defines " disorderly conduct" as including conduct that " otherwise tends to impede or disturb the public employees in the performance of their duties." 39 C.F.R. § 232.1(e) (emphasis added).
The defendant also points to Appeal of Wayne L. Orr, PSBCA No. 6268, 10-2 B.C.A. (CCH) 34560, 2010 WL 3824046 (Sept. 30, 2010), in which the Postal Service found that delaying an employee for " no more than three minutes" does not violate section 232.1(e). However, that decision is not binding precedent, and it cannot establish a bright-line rule because it fails to account for the various circumstances in which even a brief delay could " disturb the public employees in the performance of their duties." Here, the magistrate judge found that the defendant's conduct interfered with Officer Taliferro in a way that prevented -- or at least delayed -- him when he was trying to return his equipment, which included his weapon, to the security of the building. " [W]hen a defendant is convicted after a bench trial, the test is 'whether the evidence is sufficient to justify the trial judge, as trier of facts, in concluding beyond a reasonable doubt that the defendant was guilty.'" United States v. Bashaw, 982 F.2d 168, 171 (6th Cir. 1992) (quoting United States v$. Niver, 689 F.2d 520, 529 (5th Cir.1982)). The Court " must resolve all conflicts in the testimony in the government's favor and draw every reasonable inference from the evidence in favor of the government." Ibid. (citing United States v. Tilton, 714 F.2d 642, 645 (6th Cir.1983)). Although the precise duration of the delay was not mentioned in the trial record, the evidence is sufficient to support the magistrate judge's conclusion that Darrah violated section 232.1(e) because she impeded Officer Taliferro from entering the post office.
Darrah argues that the evidence at trial did not match the charging document -- the appearance ticket -- and therefore an impermissible constructive amendment or prejudicial variance occurred.
A constructive amendment occurs when the court or the prosecutor alters the charging document to state an offense different from the original charge. United States v. Combs, 369 F.3d 925, 935 (6th Cir. 2004). An example can be found in United States v. Ford, 872 F.2d 1231 (6th Cir. 1989), where the defendant was charged with illegally possessing a firearm on September 28, 1987, but the court allowed the jury to convict on evidence that the defendant possessed a firearm on August 9, 1987. A principal problem with constructive amendments is that " they directly infringe upon the [F]ifth [A]mendment guarantee to hold a defendant answerable only for those charges levied by a grand jury." Combs, 369 F.3d at 935 (citations omitted); see also United States v. Budd, 496 F.3d 517, 521 (6th Cir. 2007) (holding that " a constructive amendment results when the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than the one charged in the indictment" (citations omitted)). No such problem exists here. The defendant was not charged with " a capital, or otherwise infamous crime, " U.S. Const. amend. V, and therefore she was not entitled to a grand jury presentment. See United States v. Lentsch, 369 F.3d 948, 954 n.4 (6th Cir. 2004). Moreover, Darrah was charged with disorderly conduct, and that is exactly what she was convicted of.
A variance is a different form of modifying a charging document. A variance occurs " when the terms of the indictment 'are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.'" United States v. Fields, 763 F.3d 443, 467 (6th Cir. 2014) (quoting United States v. Chilingirian, 280 F.3d 704, 711 (6th Cir. 2002)). A variance may trench upon a defendant's right under the Sixth Amendment " 'to be informed of the nature and cause of the accusation.'" United States v. Nixon, 694 F.3d 623, 637 (6th Cir. 2012) (quoting U.S. Const. amend. VI). To obtain relief, the defendant must show both that a variance occurred, and " that it affected a substantial right." Fields, 763 F.3d at 467 (quoting United States v. Hughes, 505 F.3d 578, 587 (6th Cir. 2007)). However, where, as here, the issue is first raised on appeal, the defendant must establish plain error. Ibid. (citing United States v. Swafford, 512 F.3d 833, 841 (6th Cir. 2008)). Plain error occurs when there is " (1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings." United States v. Prater, 766 F.3d 501, 518 (6th Cir. 2014) (internal quotation marks and citations omitted); see also United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
Darrah argues that she was charged with committing " disorderly conduct" but convicted of " imped[ing] ingress to or egress from post offices, " and therefore there was a variance between the charge and the proofs. It is true that the ticket was written for a " disorderly conduct" violation. However, the language of the regulation does not suggest that " disorderly conduct" and conduct that " impedes" public employees are different offenses. The regulation does not employ multiple pronouns or different verbs or modifiers to distinguish between disorderly conduct and conduct that impedes public employees. Instead, the language of the regulation prohibits both types of conduct in the same sentence, suggesting that one is a species of the other. Moreover, Darrah failed to identify at trial or in her appellate brief whether or how " disorderly conduct" and conduct that " impedes" public employees differ. In fact, at no point at trial or in her appellate briefs does Ms. Darrah identify the elements of disorderly conduct under the regulation.
Further, case law does not treat disorderly conduct differently from conduct that impedes public employees under 39 C.F.R. § 232.1(e). For instance, the Ninth Circuit in United States v$. Waites, 198 F.3d 1123, 1128 (9th Cir. 2000), held that conduct that impedes public employees is a type of disorderly conduct. (" Under 39 C.F.R. § 232.1(e), disorderly conduct requires some conduct which disturbs or impedes the general public or the postal employees in transacting business."). The interpretation in Waites, cited by the defendant, is consistent with the regulation. Section 232.1 prohibits disorderly conduct. See 39 C.F.R. § 232.1 (" Disorderly conduct . . . is prohibited."). The regulation defines disorderly conduct in several ways, which serves notice that a person charged with that offense must be prepared to defend against such accusations.
Certainly, the appearance ticket contains sparse factual detail and conclusory allegations. The violation alleges that Ms. Darrah " refused to move her vehicle" from the post office lot; " pass[ed] out literature; " Sergeant Fudge " tried to explain" to Ms. Darrah; and Ms. Darrah " became disorderly." The violation does not identify what literature Ms. Darrah passed out, what Sergeant Fudge tried to explain, or how Ms. Darrah became disorderly. Nonetheless, the regulation itself furnishes the essence of the offense and provides the notice of the accusation. And the charging document is sufficient if it " (1) includes the elements of the offense intended to be charged, (2) notifies the defendant of 'what he must be prepared to meet, ' and (3) allows the defendant to invoke a former conviction or acquittal in the event of a subsequent prosecution." Lentsch, 369 F.3d at 954 (quoting United States v. Cor-Bon Custom Bullet Co., 287 F.3d 576, 579 (6th Cir. 2002)). The ticket satisfied those requirements. As noted earlier, Darrah was charged with and convicted of disorderly conduct. " [T]here is no variance if 'the theory of the case [is] not changed, the defendant [is] not charged with a different substantive crime, and the elements of the crime charged [are] not altered." United States v. Smith, 749 F.3d 465, 483 (6th Cir. 2014) (quoting United States v. Atisha, 804 F.2d 920, 927 (6th Cir. 1986)).
Finally, the defendant insists that her conviction is unconstitutional because her activities were protected by the First Amendment. In framing this argument, Darrah focuses primarily on her leafleting activity, which she characterizes as a classic form of protected expression. However, her conviction was for conduct that obstructed access to a postal facility, which generally is not protected.
Certainly, distributing leaflets is not inherently disorderly when it is unlikely to impede anyone from accessing the post office. United States v. Kokinda, 497 U.S. 720, 734, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (" One need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone's hand."); Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 665, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (Blackmun, J., concurring in part and dissenting in part) (" The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead, the recipient is free to read the message at a later time."). And, as mentioned above, questioning Officer Taliferro about the law is insufficient to constitute disorderly conduct. See Wilson, 229 F.Supp.2d at 528-29 (" 'The general rule is that merely remonstrating with an officer [on] behalf of another, or criticizing or questioning an officer while he is performing his duty, when done in an orderly manner, does not amount to obstructing or delaying an officer in the performance of his duties.'") (quoting Brooks, 984 F.Supp. at 955). But those acts are not the basis for the conviction.
As the Sixth Circuit explained, " [t]here can be no doubt that the freedom to express disagreement with state action, without fear of reprisal based on the expression, is unequivocally among the protections provided by the First Amendment." McCurdy v. Montgomery County, 240 F.3d 512, 520 (6th Cir. 2001). " The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principsl characteristics by which we distinguish a free nation from a police state." City of Houston v. Hill, 482 U.S. 451, 462-63, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). Accordingly, " expressive activity protected by the First Amendment may not be punished as disorderly conduct." Johnson v. Bax, 63 F.3d 154, 159 (2d Cir. 1995); See also Zalaski v. City of Hartford, 704 F.Supp.2d 159, 171 (D. Conn. 2010) (" If the [defendant] . . . lawfully exercis[ed] [her] First Amendment rights, [she] could not be deprived of those rights simply because [she] refused to obey an order to disperse.").
In the context of this case, however, that is beside the point. The regulation, 39 C.F.R. § 232.1(e), does not criminalize disagreement with police officers. It does, however, prohibit conduct that interferes with access to buildings by postal employees and the general public. See Kokinda, 497 U.S. at 758 (noting that 39 C.F.R. § 232.1(e) prohibits individuals from obstructing post office entrances, disturbing postal employees in the performance of their duties, or impeding the public in the transaction of postal business); Waites, 198 F.3d at 1128 (" Under 39 C.F.R. § 232.1(e), disorderly conduct requires some conduct which disturbs or impedes the general public or the postal employees in transacting business.").
Darrah argues that all she did to " 'impede' anybody was pass out campaign literature as they approached the building, " an activity which is protected by the First Amendment. However, she has misread the factual record. Sergeant Fudge did not ticket Darrah for disorderly conduct because she passed out campaign literature. Sergeant Fudge issued the disorderly conduct ticket, in part, because " Ms. Darrah impeded [Officer Taliferro, who] was trying to bring in his shotgun into the building." Officer White testified that Darrah " slowed [Officer Taliferro] down" and " block[ed] his direct access to the building." Although the First Amendment may protect the content of Darrah's speech, it does not protect Darrah's non-expressive conduct. See King v. Ambs, 519 F.3d 607, 615 (6th Cir. 2008) (" [I]t is clear that King was arrested for the act of disrupting the officer's investigation, and not for the content of his speech."); Norton v. Ashcroft, 298 F.3d 547, 552 (6th Cir. 2002) (the First Amendment does not apply to physical obstruction); Am. Life League, Inc. v. Reno, 47 F.3d 642, 648 (4th Cir. 1995) (" [C]ertain physical obstructions, such as a blockade of pedestrian traffic, are not protected by the First Amendment."); see also Cameron v. Johnson, 390 U.S. 611, 617, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968) (holding that a statute which prohibited unreasonable interference with access to a courthouse was a " valid law . . . and the fact that free speech is intermingled with such conduct does not bring with it constitutional protection" (citations omitted)); Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dep't, 533 F.3d 780 (9th Cir. 2008) (California statute criminalizing " disruptive presence at schools" applied only to interference or disruption caused by manner, not content, of person's expressive conduct, and thus did not infringe free speech). The First Amendment did not permit Darrah to impede Officer Taliferro's access to the post office.
The defendant also argues that Officer Fudge cited her for impeding Officer Taliferro as a pretext to prevent her from passing out campaign literature. If that were true, the conviction probably would be unconstitutional. See Cox v. Louisiana, 379 U.S. 536, 557, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). But there is no factual support in the record for Darrah's argument. Quite the contrary. The testimony demonstrates that the officers exhibited patience and professionalism with Ms. Darrah, who acted in a " combative" and " erratic" manner while she interacted with them. The officers did not immediately ticket her. Instead, they patiently coaxed her for five to ten minutes to move her car from the handicap spot in the employee parking lot and tried to explain to her that she could not pass out her campaign literature in front of the post office. After she moved her car, Darrah returned, blocked Officer Taliferro from entering the building, and argued with the officers. Sergeant Fudge cited Darrah only after Darrah threw her hands in the air " in kind of an irate manner, " hitting Sergeant Fudge (albeit accidentally) and causing her to step back.
The conviction in this case did not impinge upon any of the defendant's rights under the First Amendment.
For the reasons stated, the judgment of the magistrate judge is AFFIRMED.
In accordance with the opinion and order entered on this date,
It is hereby ORDERED AND ADJUDGED that the judgment of the magistrate judge is AFFIRMED.